As Chief Justice Roberts pointed out, the core issue in today's detainee decision is the struggle between the power of Congress and the power of the courts: it's not whether the U.S. has the right to detain enemy combatants, and not whether non-U.S. citizen detainees have access to legal process to challenge their detention, but simply whether Congress has a right to define and limit those procedures (as it did by statute in 2005 and 2006), or whether the Supreme Court has absolute authority to require that all procedural rules be determined by the district courts and reviewed by the Supreme Court. For this President and his successor, however, the bottom-line question remains what to do with enemy combatants: continue to hold them at Guantanamo or some similar facility subject to the new procedures, go back to Congress for yet another set of rules, or perhaps ship more detainees off to other countries to handle in their own way.

In a serious world, we'd expect presidential candidates to present competing visions of how to answer both sets of questions. But the responses of the McCain and Obama campaigns to today's decision shows that each is too busy struggling in their own ways with the politics of this issue to address it meaningfully.

Let's start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held "those procedures are not an adequate and effective substitute for habeas corpus." The Military Commissions Act of 2006 specifically precluded the DTA's procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court's jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA "operates as an unconstitutional suspension of the writ."

How did the candidates respond to the decision? First, the McCain response, as related by Michael Goldfarb at the McCain Report (the excellent official campaign blog):

SEN. JOHN MCCAIN: It obviously concerns me. These are unlawful combatants, they are not American citizens, but -- and I think that we should pay attention to [Chief J]ustice Roberts' opinion in this decision -- but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.

McCain's position has always been that these people do not "deserve the protections of the kind of judicial process that a citizen of the United States would have." This is also the position of Chief Justice John Roberts, who dissented from today's ruling, noting that the process already in place included "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

The rest of Goldfarb's post smacks Obama for voting against Roberts. You can tell that Goldfarb would like to go harder after the Court's decision, but the campaign and the candidate are constrained by McCain's own Gitmo-bashing, and so while McCain's response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn't really clear on what he himself would do with those detainees.

Obama, meanwhile, is off in his own little world, unconstrained by the facts but therefore unwilling or unable to confront McCain over McCain's actual position:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain.

It's not clear what Obama means here. First, if the DTA's procedures are themselves "a legal black hole," and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he's ripping McCain for "support" of Bush's Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place. Third, if Obama means that McCain "supported" Bush's policy by voting for the DTA and the MCA, what about Obama's own vote for the DTA?

I agree that both candidates don't exactly come up with some Lincoln Douglas arguments here, but much of that can come down squarely on Republican shoulders. Specifically Lee Atwaters' From Willie Horton on down, to Karl Rove and their negative sound bite campaigns, the only place where politicians can now air their views for more than 20 seconds is the Daily Show. Or CSpan of course.

Posted by: Daryl Rosenblatt at
June 12, 2008 11:09 PM

Republicans are the ones responsible for short, negative sound bites on TV??!! Daryl come back to planet Earth.

Posted by: stan at
June 13, 2008 6:25 AM

OK Stan, I will grant you the LBJ mushroom cloud. But come on, Willie Horton showed the way. Being Swift Boated is as much a part of the political lexicon as ____gate, whatever the scandal of the day is. Clinton's foibles were personal their venality. The GOP these days make their problems the world's.

Not even Omar the Rug Maker's rugs lie as much as Bill O'Reilly and Ann Coulter.

Posted by: Daryl Rosenblatt at
June 13, 2008 10:20 PM

I think the issue is whether or not the United States follows the rule of law, or that of men. Whether we stand for something, or whether we allow what remains of the Constitution to blow away in the wind.

The prisoners in Guantanamo are a stain on America's good name arounf the world. They are not the worst of the worst-we don't know what they are, because no competent independent tribunal has ever examined what they are.

If they truly are terrorists, we should have no problem proving it to a judge. If they're not, then we should erase this shameful chapter in American history.

George Will today defends the Sup Ct decision and takes McCain to task for his condemnation of it. And rightfully so, particularly from a conservative perspective the court was right to rein in the Executive Branch's power to decide who falls within the Constitution and who does not. Its a separation of powers issue; shame on McCain for turning the court's decision into a political one. A Reagan appointee wrote the majority opinion too.

Posted by: dante at
June 17, 2008 3:15 PM

If John McCain said the earth was round, George Will would disagree with him. Will's break with McCain over campaign finance reform is permanent and irrevocable.